B______ v. State

• Decision Date: 05 January 1918
• Citation: 166 Wis. 525,166 N.W. 32
• Parties: B______ v. STATE.
• Court: Wisconsin Supreme Court

166 Wis. 525

166 N.W. 32

B______

v.STATE.

Supreme Court of Wisconsin.

Jan. 5, 1918.

Error to Circuit Court, Dunn County; A. H. Reed, Judge.

B____ was convicted of rape, and he brings error. Reversed, and new trial ordered.

The plaintiff in error (hereinafter called the defendant) was convicted of rape, and brings error to reverse such conviction. The information contained two counts; one for rape, and the other for adultery. The crime is charged to have been committed on Sunday, September 3, 1916, at the office of the defendant, a practicing physician in the city of Menomonie. The defendant is a married man, 36 years of age, with two children, who has practiced his profession at Menomonie for more than 13 years. The prosecutrix, a girl 17 years of age, weighing about 100 pounds, went to the defendant's office on Saturday, September 2d, for the treatment of a mole or birthmark on her face. The defendant had treated the complaining witness professionally and her father several times before. The office was in the second story of a business block on one of the main streets of the city, and consisted of three front rooms connected together. The defendant treated the birthmark with nitric acid, and it was arranged that the girl should return on the following day between 11 and 12 o'clock, in order that the doctor might observe the progress of the treatment. She returned at the time appointed on Sunday. Some patients were receiving attention, and she waited in the reception room until they were attended to and went away, and then went into the treatment room, being the east room of the suite, and the doctor examined the mole, squeezed it, and had her lie down upon the operating table in order (as he claims) to have a better view of it. At this point the stories of the prosecutrix and the defendant radically differ; the prosecutrix claiming that the rape was committed, and the defendant denying that any such thing took place. The prosecutrix left the office and walked home, and complained to her mother (using the German language, which was the language used in the family) that B____ was on top of her. The girl and her father immediately went to the defendant's office and had an excited conversation with him. The district attorney was consulted, just when does not appear, but a warrant charging assault with intent to commit rape was issued by Judge P. B. Clark of the municipal court of Dunn county December 18, 1916, and a preliminary examination held 10 days later before Hon. J. W. Macauley, county judge, sitting as judge of the municipal court on account of the filing of an affidavit by the district attorney that Judge Clark was a necessary and material witness for the state. A full examination was had, and Judge Macauley held that the evidence did not show a crime to have been committed, and discharged the defendant. In February, 1917, a second preliminary examination was had before Hon. George Thompson, circuit judge, upon a complaint and warrant charging rape, and on this examination it was found that an offense had been committed, and that there was reasonable cause to believe the defendant guilty, and he was bound over for trial.

The story of the prosecutrix is substantially as follows: She went to defendant's office on Saturday, and was taken into the east room. The doctor put some medicine on the birthmark, and sent her back into the waiting room to wait and see how it worked. After a while he came out and looked at it, and asked her if it burned, and she said it did terribly, and then he sat down in a chair and took her on his knee, and she got up right away. He told her to step in to-morrow. There would be no charge for it. She did not think there was anything wrong about his taking her on his knee because she thought he wanted her not to think of the pain. She told her mother about it when she went home, and her mother thought that it was nice of him to make her not think of the pain. When she came to the office on Sunday there was only one other patient there, namely, a boy who, after being treated, went away, and the doctor took her into the same room as before, and sat her in a chair, and told her to take her bonnet off. Then he came up behind her and squeezed the birthmark, and she thought that was all he was going to do, and got up and reached for her hat, when the doctor grabbed her and slammed her on the table (an operating table 22 inches wide, on casters), and was right on top of her, pushing up her skirts and holding her left hand with his right. She tried to get away, fought all she could, struggling and twisting, trying to strike him and push him off. Her right leg fell off the table, and he put it on again, and when he got his organ into her private parts she said, “You hurt me.” When he got off she put on her hat and went home, feeling as if she would vomit, and so weak she could hardly walk, and told her mother B____ was on top of her. Her mother at once told her father, and she and her father at once went back to the doctor's office. She wore short dresses, and was quite lightly dressed. Her undergarment was a combination suit, waist and loose drawers buttoned in front and back. The drawers were not unbuttoned, torn, removed, or soiled. Her right leg was lame for a week. She did not scream because he leaned so heavily on her that she was just like choked, and she was afraid of him, he was so rough.

The defendant's version is substantially as follows: On Saturday he put some nitric acid on the birthmark, and allowed it to act for a few moments, and had her wait in the waiting room while he attended to another patient, and then examined it again, and was afraid he left the acid on too long, and he then told her to return on Sunday, and let him see it again. She was standing near his chair with tears in her eyes, and complaining of its hurting her, and he took hold of her hand, and she sat on his lap, half crying, and he to pacify her said, “Kiss me,” which she did, and then got up and went home. When she came Sunday she was the last patient. It was warm, and the windows were open, and he took her into the east room and sat her on a chair, squeezed the blemish a little, told her to take her hat off, pulled the table out from the wall, and told her to get on the table so that he could have a better light, and she did so. He examined it with a magnifying glass, put some ointment on it, told her to get up, which she did, and got off the table. She seemed to be worried for fear it had been burned too much, and he tried to reassure her by telling her it would be all right, and took her by the hand, and as he tilted back his chair she sat on his lap and put her arm around his shoulder, whereupon he tilted his chair back again, and said this will never do, and apologized to her, and got up and went to his desk in the next room. As she started to go home she came into the room where he was and said, “I am mad at you,” and he said, “You have no reason to be mad at me; I have apologized to you, and that is all I can do;” and she went out. This was the entire transaction.

It is undisputed that the prosecutrix and her father came back to the office within a few minutes, while the defendant was treatinganother patient, and met the doctor at the head of the stairs, and that an excited conversation took place. The prosecutrix and her father agree that the father asked the defendant, “Are you a doctor or a beast?” and that defendant said: “Keep quiet and have sense;” and the father said: “I have sense, but you haven't got any; use a girl like that right in the office; if you want it so bad go to the cities and pay for it.” That the doctor took them into Dr. Steve's office, opening off from the same hall, and sat down on a couch and cried, and said, “I don't know why I done it,” and the father said that if he was 10 years younger he would knock all the bones in the doctor's body crooked, and the doctor said, “I don't blame you,” and then asked the prosecutrix, “Did I hurt you?” to which she answered, “No, sir; but you used me, that is what you done.” The defendant's version of this transaction was that he saw the prosecutrix and her father coming up the stairs and went and met them at the head of the stairs, and the father yelled the question, “Are you a man or a beast?” and he said, “Be quiet, you don't need to make such a row here;” and the father was yelling, and he took them into Dr. Steve's office and asked, “Why all this fuss; you don't need to make such a row;” and the father said, “I would break every bone in your body if I were a...